As summer approaches, I feel it’s necessary to emphasize to students the importance of preserving the integrity of their educational passwords to Lexis and Westlaw. However, this year, I think it’s equally important to emphasize the same to legal employers, in light of a recent ethics decision.

Increasingly, students visit my office with a conundrum. It always goes something like this: “My law firm wants me to use my Lexis and Westlaw account to do legal research. I’m pretty sure Westlaw/Lexis doesn’t allow it, but I’m afraid to say no. What should I do?”

Unless you’re working for a non-profit or other organization for which educational use of passwords is permissible, my advice is this: At this risk of disappointing your employer, you must tell him or her that doing so is likely violation of Westlaw and Lexis’ terms of use. The consequences for violating these terms are potentially severe; here’s what the relevant portion of the Westlaw User Agreement states:

User may access and use Westlaw solely for educational purposes directly related to User’s coursework at Law School or for bar preparation purposes (“Educational Purposes”). Any other use, including any use in connection with User’s employment, any internship or externship, is prohibited…. Westlaw Charges incurred through use of the Law Student Password for Educational Purposes are waived during the term of this Agreement. West reserves the right to collect from User all Westlaw Charges incurred through use of the Law Student Password for purposes other than Educational Purposes at the then-current commercial Westlaw rates.

Read that again: “West reserves the right to collect from User all Westlaw Charges incurred.”This means that, in addition to potential termination of free privileges, students found to be using Westlaw for non-educational purposes may be personally billed for each and every minute of use on the job. That could amount to thousands of dollars in usage fees!

For students who find themselves in this situation, the idea of telling their superior the implications of their non-educational use isn’t a pleasant one. This is especially the case when students feel that the only reason they’ve been hired by small firms is because they’re seen as a source of free research. This is why I suggest that students couple their objection with a proposal to use free legal research tools to accomplish the same tasks.

Before approaching the employer, students should use a current or past research problem as an example and work through it using free research tools such as Google Scholar, FindLaw, or other free resources of law mentioned on this blog. Demonstrate to the employer that the same tasks can be accomplished using those free tools. Albeit Shepardizing/KeyCiting may be more difficult, citating can still be accomplished using Google Scholar. (For an explanation on how to Shepardize using Google Scholar, check out my previous post.) By demonstrating that the same tasks can be accomplished without violating Westlaw and Lexis agreements, the student is also demonstrating a positive, problem-solving work ethic and shifting attention away from the employer’s embarrassment.

Students and employers alike need to know that the practice of coercing students to use their Westlaw and Lexis educational passwords is unethical, and most likely, illegal. In fact, bar associations have begun to recognize the problem. To put the issue in perspective, in a recent opinion by the Utah State Bar Ethics Advisory Committee, the committee found the practice of requesting that students use their educational passwords unethical:

When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities….

Misuse of the student’s educational privileges is a theft of services. Utah Code Ann. §76-6-409. The companies have specifically limited the use of their products to non-profit or educational uses. The lawyer hiring a law student has no reasonable expectation that the law student will violate her contractual obligation to refrain from the use of those services in a for-profit situation. A theft of services is a violation of Rule 8.4(b). It is a criminal act, which, depending upon the amount of services wrongfully appropriated, could range anywhere from a Class B Misdemeanor to a Second Degree Felony. Utah Code Ann. §76-6-412.

Click here for the complete opinion, and here for additional legal commentary on the subject.